17 February 2018

Given that Meow-Ludo Disco Gamma Meow-Meow - noted last year - is in the news again it was timely to read 'DIY Bio: Hacking Life in Biotech’s Backyard' by Lisa C. Ikemoto in (2017) 51 University of California Davis Law Review 539.

The peripatic Meow-Meow - recurrent political candidate, cyborg advocate and biohacking enthusiast - has unsurprisingly had his OPAL RFID transit card cancelled after he extracted the chip for subcutaneous insertion. He appears to consider that the resulting litigation - contesting a $200 fine in 2017 for riding the train without a valid ticket and reportedly planning to launch legal action against TfNSW for unlawfully cancelling his cards - will advance cyborg rights.

Australian law does not recognise 'cyborgs' as such and his action would appear to be readily addressed under the terms and conditions for use of his card. In the Australian Capital Territory there is a prohibition under Regulation 49 of the Road Transport (Public Passenger Services) Regulation 2002 of traveling on an ACT government bus using a ticket that has been 'damaged or defaced in a material respect' or 'changed in a material particular', with ticket including a card with a chip or magnetic strip. 2

Meow-Meow gained attention several years ago regarding 'biohacking' (centred on a DIY community DNA-modification lab) rather than 'bodyhacking'.

Ikemoto comments

DIY biologists set up home labs in garages, spare bedrooms, or use
community lab spaces. They play with plasmids, yeast, and tools like
CRISPR-cas9. Media stories feature glow-in-the-dark plants, beer, and
even puppies. DIY bio describes itself as a loosely formed community of
individualists, working separate and apart from institutional science. This
Essay challenges that claim, arguing that institutional science has fostered
DIY bio and that DIY bio has, thus far, tacitly conformed to institutional
science values and norms. Lack of a robust ethos leaves DIY bio ripe for
capture by biotech. Yet, this Essay suggests, DIY bio could serve as a
laboratory for reformulating a relationship between science and society
that is less about capital accumulation and more about knowledge creation
premised on participation and justice.

She goes on

Popular media depicts biohackers or Do-It-Yourself (“DIY”)
biologists as the ultimate science geeks. “DIY bio” refers to noninstitutional
science or science performed outside of professional
laboratories. DIY biologists set up home labs in garages, spare
bedrooms, and closets or use community lab spaces. The people
doing DIY bio range from the self-taught to PhDs. Instead of building
computers or creating apps, DIYers play with plasmids, jellyfish, yeast,
and polymerase chain reaction in genetic engineering experiments.
Media stories and DIY bio websites often feature glow-in-the-dark
plants, food, petri dish art, and even puppies.

DIY bio is an emerging set of activities. A range of players, with
varied ideologies, are shaping DIY bio’s trajectories. DIY bio’s
signature claim is that it exists apart from, and even in opposition to,
institutional science. This Essay challenges that claim. Whether all
DIY biologists know this or not, DIY bio serves the interests of
institutional science and is well-situated for capture by biotechnology.
Biotechnology refers not only to the life sciences-based industry, but
also to the neoliberal epistemology that values the use of applied
science to commercialize the transformation of life itself into
technology. DIY bio’s origin stories do reflect resistance to the highly structured and bureaucratic nature of institutional science. Yet these
accounts also indicate interest convergence between DIY bio and
institutional science. Accounts that forecast DIY bio’s future show DIY
bio conforming its practices to mainstream law, policy, and market
concerns. Thus far, DIY bio has not crafted its own account of the
relationship between science, society, and ethics, and is falling into a
science-as-usual practice that situates DIY bio in biotech’s backyard.

Part II sets out a descriptive account of biohacking, and DIY bio, in
particular. Part III identifies three overlapping explanations for DIY
bio. The first two, explicitly political accounts and nostalgic accounts,
are largely consistent with the DIY bio claim that DIY bio is different
and apart from institutional science. The third account borrows from
Frederick Jackson Turner’s frontier thesis and asserts that DIY bio
sustains an ideology of bio-individualism embedded in biotechnology.
Part IV reviews and critiques law and policy views of DIY bio and its
prospects. These views apply the frames and standards applicable to
biotech. Part V makes the case for biotech’s annexation of DIY bio.
Part V elaborates on DIY bio’s failure, so far, to re-define the
relationship between science and society, and suggests a few initial
critical points of engagement for doing so.

She suggests that

As yet, DIY bio has not expressed a commitment to ethical science
activity, nor developed a robust ethos. Perhaps, its tacit acceptance of
the risk-benefit framework means that its view of ethics aligns with
that of institutional science. That is, it conflates a risk-benefit
weighing with ethical standards or views ethics as a compliance
obligation.

The risk calculus is not devoid of ethical concerns. It maps onto a
standard ethical test used in institutional science. The test highlights
three criteria — safety, efficacy, and autonomy. That test derives
from the Belmont Report’s principlist framework, the FDA’s drug and
device approval standards, and neoliberalism’s effects on the life
sciences and autonomy. The Belmont Report states four principles —
autonomy, beneficence, non-maleficence, and distributive justice.
Autonomy’s application is informed consent. The non-maleficence
principle is addressed by weighing risk to human health against benefits. Benefits refer to efficacy or improvements to human health.
The FDA uses safety and efficacy as its criteria in the drug and device
testing requirements for market approval. Efficacy, like safety or
risk to human health, is narrowly defined. The FDA requires that the
product work, but does not require that it work well or better than
existing therapeutics. Market thinking has infiltrated these criteria.
Claims that individual choice should trump agency standards in
determining access to drugs have gained credence. This indicates
that traditional bioethics’ first principle, autonomy, may now be
understood as a form of free market individualism. In addition, the
pharmaceutical industry has leveraged that version of autonomy to
maximize the role of drugs in medical care, and the sale of particular
products. While big bio’s risk calculus is not the end-all and be-all
of ethics in institutional science, it is part of an impoverished ethical
framework.

In 2011, the North American and European DIYbio Congresses
issued Draft Codes of Ethics. The codes incorporate principles of open
science — open access, transparency, and education; and selfregulation
— safety (adopt safe practices), environment (respect the
environment), and peaceful purposes (biotechnology should only be
used for peaceful purposes). As discussed, the North American
Code has one more element — Tinkering. The Code elements are
general. As my characterization suggests, the Code elements, like the
Belmont Report principles, lend themselves to narrow or broad
readings. Read more generously, safety, environment, and peaceful
purposes might move DIY bio beyond the issue of forestalling
regulation to situating science as a tool for social justice. On the other
hand, open access could be read as a right to access, premised on free
market individualism. Tinkering invokes the individual, as the nostalgic accounts show. If DIY bio is first and foremost an
individualist vision of science, it stands little chance of evolving into a
new understanding of science.

The open science principles suggest that DIY bio’s ethos differs from
big bio’s, and that DIY bio is not bound by big bio’s norms. Yet, open
science goals do not translate to an ethics of science. Open science can
be used for different goals, including forms of commercial
distribution that are exploitative. In addition, the Code states the
elements as universal principles, which in itself is problematic.
Typically, dominant readings of so-called universal principles are used
to maintain boundaries, and identify the out-group as non-compliant.
It is very possible that the universal principles may be used to
undercut the inclusive goals that open science asserts.

My comments in the previous subparts suggest, without prescriptive
detail, the possibility of using DIY bio to redefine the possible
relationship between science and society. Contemporary accounts
indicate that DIY bio projects are typically small-scale and are
relatively unsophisticated. As such, DIY bio seems underpowered as
a platform for re-thinking the political economy of the life sciences.
What I suggest here is not that DIY biologists directly challenge or
redesign institutional science. Rather, DIY bio might provide an
opportunity to create, by deliberate experimentation, a set of practices
that are ethos-based and originate from critical social inquiry. The
most valorized explanatory accounts speak, in bits and pieces, of social
justice goals. Using these as a starting point, DIY bio might craft ways
of doing science that embed justice-based ethics into inquiry and
practice. Ethics, then, could become not a compliance checklist, but
constitutive of good science.

Ikemoto concludes

DIY bio is many things to many people. That is, undoubtedly, part
of its appeal. What is it not, however, is separate and apart from
institutional science. Its location in biotech’s backyard, without a
fence or substantive alternative vision of DIY bio’s role, makes it
vulnerable to annexation. In that scenario, DIY bio and its dream of a
new science by the people might disappear. This Essay maps the
relationships between DIY bio and institutional science. The mapping also critiques aspects of biotechnology that are inconsistent with DIY
bio’s stated goals of access and participatory knowledge formation. If
DIY bio takes those goals seriously, this Essay suggests that it move
beyond compliance-based thinking, and beyond experimentation
using plasmids and pipettes. Acknowledging that science is a social
practice, followed by scientific-social inquiry about how and why we
engage with plasmids and pipettes, and willingness to experiment with
new social methods of doing science, might move DIY bio out of
biotech’s backyard, and into society.

15 February 2018

the issue of justification of government's intervention in the parental acts of child naming, a neglected topic in the recent philosophical literature. It questions the ability of some of the current theories in family ethics to respond to this problem, and argues that both permissive and restrictive theories fail to provide a plausible argument about the proper limits of government regulation of child naming practices. The article outlines an alternative solution that focuses on the child's right to authenticity and suggests that only those names that infringe upon this right invite justified state intervention.

Sarajlic comments

Article 7 of the United Nations Convention on the Rights of Child posits that every child has a right to a legally registered name. Article 8 states that governments must respect a child's legally given name. However, the Convention neither specifies what kind of name can be given to a child nor what does government's respect of a name amounts to. Does this right imply that any kind of name can be given to a child, regardless of its meaning, aesthetics and other symbolic implications? Should governments respect all parental decisions about names for their children?

The issue of naming a child is far from trivial. It is not only a problem of aesthetics, tradition or culture, but also a matter of distinct ethical, and even political concern. It belongs to the domains of moral and political philosophy, where questions about the permissible or desirable forms of child rearing, as well as about the limits of government's intervention in family issues are addressed.

However, there has been surprisingly little philosophical interest in this question. Despite substantial expansion of philosophical literature about the ethics of family, parenthood and the role of government in child upbringing in recent years, there is a conspicuous lack of normative analyses that would elaborate on the ethics of child naming.

One of the reasons this is so may be the fact that most philosophers concerned with ethics of parenthood subscribe to a form of what David Archard called the liberal standard. According to this view, provided that parents do not harm their children the content of the principles of child rearing is primarily an internal matter of family life, a domain that is to be isolated from the external, societal or governmental, concern. Therefore, the question about names parents give to their children is a private discretionary matter and governments have no rights to pry.

But claiming that there should be absolutely no legal limits to parental child naming may be somewhat odd. Think of the little boy from New Jersey whose parents named him ‘Adolf Hitler’, in honour of the notorious Nazi leader. Does it sound right to say that governments should be neutral to these kinds of practices?

This article has a twofold aim. First, it aims to fill in this gap by addressing the issue of moral and political significance of child naming. I will suggest that this question is not only interesting, but also deeply troubling for the liberal political philosophy. As I intend to show, the existing normative frameworks give us little guidance about how to address it. While it is difficult to say if any alternative framework could do any better, I will offer a tentative proposal.

Second, the article will challenge the initial assumption that the content and meaning of the name parents choose for their child is a private matter outside of legitimate purview of the state. I will argue that the liberal state has a direct interest in ensuring that child naming practices correspond to a particular ethical standard.

The article will first establish the theoretical and practical relevance of this issue, and then proceed to discuss the normative approaches that could help us address it. I will draw on the literature concerned with issues of parental autonomy and children rights. In terms of practice, I will primarily draw from American cases and examples. However, this being a normative analysis, it will have a broader appeal.

10 February 2018

'Artificial Agents and General Principles of Law' by Antje von Ungern-Sternberg German Yearbook of International Law (Forthcoming)) comments

Artificial agents – from autonomous cars and weapon systems to social bots, from profiling and tracking programmes to risk assessment software predicting criminal recidivism or voting behaviour – challenge general principles of national and international law. This article addresses three of these principles: responsibility, explainability, and autonomy. Responsibility requires that actors are held accountable for their actions, including damages and breaches of law. Responsibility for actions and decisions taken by artificial agents can be secured by resorting to strict or objective liability schemes, which do not require human fault and other human factors, or by relocating human fault, i.e. by holding programmers, supervisors or standard setters accountable. “Explainability” is a term used to characterise that even if artificial agents produce useful and reliable results, it must be explainable how these results are generated. Lawyers have to define those areas of law that require an explanation for artificial agents’ activities, ranging from human rights interferences to, possibly, any form of automated decision-making that affects an individual. Finally, the many uses of artificial agents also raise questions regarding several aspects of autonomy, including privacy and data protection, individuality, and freedom from manipulation. Yet, artificial agents do not only challenge existing principles of law, they can also strengthen responsibility, explainability, and autonomy.

'Ownership of Personal Data in the Internet of Things' by Václav Janeček comments

This article analyses, defines, and refines the concepts of ownership and personal data. It critically examines the traditional dividing line between personal and non-personal data and argues for a strict conceptual separation of personal data from personal information. The article also considers whether, and to what extent, the concept of ownership can be applied to personal data in the context of the Internet of Things (IoT). This consideration is framed around two main approaches shaping all ownership theories: bottom-up and top-down approach. Via these dual lenses the article reviews existing debates relating to four elements supporting introduction of ownership of personal data, namely the elements of control, protection, valuation, and allocation of personal data. It then explores the explanatory advantages and disadvantages of the two approaches in relation to each of these elements as well as to ownership of personal data in IoT at large. Lastly, the article outlines a revised approach to ownership of personal data in IoT that may serve as a blueprint for future regulatory and policy debates in the context of EU law and beyond.

Governments around the world issue identity documents (IDs) that list people’s gender. These IDs include birth certificates, passports, national identification cards, and driver’s licenses, among others. People are expected to present IDs in everyday life for a wide range of purposes, such as opening a bank account, renting a car, boarding an airplane, and voting. Longstanding human rights principles support the proposition that, if IDs contain gender markers, individuals have the right to obtain markers that match their gender identity. For example, a transgender woman should have the right to identify herself as female on her IDs. A transgender man should have the right to identify himself as male. Individuals should also be given the right to indicate if they identify outside the male/female binary.

This book chapter proceeds in three parts. First, I map out the ways in which the right to choose one’s own gender markers—which I will refer to as the right to gender recognition—derives from other well-established human rights. The right to gender recognition is not explicitly mentioned in any international human rights treaty, but this chapter contends that existing treaty provisions nonetheless cover the right to gender recognition. Second, I examine and ultimately reject potential justifications for overriding the right to gender recognition. Third, I assess the extent to which legal institutions have come to acknowledge and protect the right to gender recognition.

06 February 2018

'English Competition Law Before 1900' (Fordham Law Legal Studies Research Paper) by Barry E. Hawk comments

English competition law before 1900 developed over the course of many centuries beginning in the medieval period. That development reflected changes in political conditions, economic theories, and broader cultural values. English competition law mirrored the historical movements in England from the medieval ideal of fair prices and just wages to 16th and 17th century nation state mercantilism to the 18th and 19th century Industrial Revolution, laissez faire capitalism and freedom of contract. The development of English competition law is rich in insights for modern antitrust issues like the adaptability of case law and legislation to changing economic conditions, the role of economic theories in the formulation of legal rules, and the role of political and social values in competition policy.

Today the predominant if not exclusive emphasis on economics in the application of modern antitrust laws has resulted in a quasi-regulatory system far more technical, specialized and narrowly focused than the case making of generalist English common law judges. Modern antitrust law adapts well to changes in economic theories and conditions but it is less adaptable than English common law to shifts in political and social values. This lack of adaptability is viewed by most commentators as a beneficial insulation of decision-making from political or social influences. Proponents of non-economic policy concerns (like fear of concentration for political or social reasons), on the other hand, are forced to formulate their concerns in economic terms because of the prevailing view that only economics counts in antitrust. They would have had an easier task under the English common law.

The new Commonwealth Secure Cloud Strategy from the Digital Transformation Agency (DTA) states

The case for cloud is no secret to industry or government. A move to cloud computing - away from on premise owned and operated infrastructure - can generate a faster pace of delivery, continuous improvement cycles and broad access to services. It can reduce the amount of maintenance effort required to ‘keep the lights on’ and refocus that effort into improving service delivery.

Cloud, however, is a new way of sourcing Information Communication and Technology (ICT) services and many agencies will have to change the way they operate to make the most of this new model. In the Australian Government, a number of factors can get in the way of agencies realising their cloud aspirations, from a shortage of knowledge and experience, decades old, stubborn operating models and a struggle to sell the case for cloud across the business.

The Secure Cloud Strategy has been developed to guide agencies past these obstacles and make sure everyone has the opportunity to make the most of what cloud has to offer. This is not a simplistic ‘lift and shift’ view of the transition. Instead, the strategy aims to lay the foundations for sustainable change, seizing opportunities to reduce duplication, enhance collaboration, improve responsiveness and increase innovation across the Australian Public Service.

Some agencies have already embraced the cloud model. A coordinated approach for further adoption will make sure government derives the maximum value from this shift. The strategy will ensure experience and expertise is not locked-up and create opportunities to reuse and share capabilities through increased collaboration.

The strategy is based around a number of key initiatives designed to prepare agencies for the shift to cloud and support them through the transition:

Agencies will develop their own cloud strategies. There is no one-size-fits-all approach to implementing cloud. Agencies will use the Secure Cloud Strategy as a starting point to produce their own value case, workforce plan, best-fit cloud model and service readiness assessment.

Cloud implementation will be guided by seven Cloud Principles: − make risk-based decisions when applying cloud security − design services for the cloud − use public cloud services as the default − use as much of the cloud as possible − avoid customisation and use cloud services as they come − take full advantage of cloud automation practices, − monitor the health and usage of cloud services in real time.

A layered Cloud Certification Model will be created. The certification model creates greater opportunity for agency-led certifications, rather than just ASD certifications. It creates a layered certification approach where agencies can certify using the practices already in place for certification of ICT systems.

Service procurement will be aligned with the ICT Procurement Review Recommendations. As cloud services move more rapidly than services available through panels traditionally do, the recommendations in the ICT Procurement Review align well with creating a better pathway for cloud procurement.

cloud qualities baseline and assessment framework will be introduced to clarify cloud requirements. The cloud qualities baseline capability and assessment framework will enable reuse of assessments.

A Cloud Responsibility Model will be developed to clarify responsibilities and accountabilities. Traditional head agreements cannot cover all cloud services and their frequent variations. A shared capability for understanding responsibilities, supported by contracts, will address unique cloud risks, follow best practice and maintain provider accountability.

A cloud knowledge collaboration platform will be built. The platform will enable secure sharing of cloud service assessments, technical blueprints and other agency cloud expertise, to iterate on work already done rather than duplicating it.

Cloud skills uplift programs will be designed. Increase government skills and competencies for cloud aligned with the Australian Public Service Commission Digital Skills Capability Program and create the pathways to leverage industry programs to enhance cloud-specific skills in the Australian Public Service.

Common shared platforms and capabilities will be explored including: − Federated identity for government to enable better collaboration in the cloud.
− A platform for PROTECTED information management to reduce enclaves in agencies, and continue to iterate cloud.gov.au as an exemplar platform. − Service Management Integrations services to enable agencies to manage multi provider services.

These platforms will include the integration toolkits that enable agencies to seamlessly transition between the cloud services.

These initiatives will be supported through a Digital Transformation Agency-led community of practice that will support agencies to plan and transition their environments for cloud. It will include delivering training and advice to agencies to build confidence in their ability to manage cloud services.

The Australian Government has an ambitious agenda to transform its digital service delivery. Cloud offers reusable digital platforms at a lower cost, and shifts service delivery to a faster, more reliable digital channel. Cloud services have the opportunity to make government more responsive, convenient, available and user-focused.

The Strategy comments -

Myth: Privacy reasons mean government data cannot reside offshore.

“Generally, no. The Privacy Act does not prevent an Australian Privacy Principle (APP) entity from engaging a cloud service provider to store or process personal information overseas. The APP entity must comply with the APPs in sending personal information to the overseas cloud service provider, just as they need to for any other overseas outsourcing arrangement. In addition, the Office of the Australian Information Commissioner’s Guide to securing personal information: ‘Reasonable steps’ to protect personal information discusses security considerations that may be relevant under APP 11 when using cloud computing.” https://www.oaic.gov.au/agencies-and-organisations/agency-resources/privacy-agency-resource-4-sending-personalinformation-overseas

Additionally, APP 8 provides the criteria for cross-border disclosure of personal information, which ensures the right practices for data residing off-shore are in place. Our Australian privacy frameworks establish the accountabilities to ensure the appropriate privacy and security controls are in place to maintain confidence in our personal information in the cloud.

"The Program Risks of Work-Integrated Learning: A Study of Australian University Lawyers' by Craig Cameron, Brett Freudenberg, Jeff Giddings and Christopher Klopper in (2017) 40(1)
Journal of Higher Education Policy and Management 67-80 comments

Work-integrated learning (WIL) is a risky business in higher education. The strategic opportunities that WIL presents for universities cannot be achieved without taking on unavoidable legal risks. University lawyers are involved with managing the legal risks as part of their internal delivery of legal services to universities. It is important to identify the risks that potentially arise, so these can then be managed. A case study involving Australian university lawyers reveals the ‘program risks’ of WIL. Program risk is a type of legal risk that relates to the conduct of universities, host organisations and students before, during and after a WIL placement, as well as the personal characteristics of students that can expose the university to legal risk. The research findings may be applied by university lawyers, academic disciplines and university management to evaluate and improve risk management in WIL programs

'Risks and Rewards of Externships: Exploring Goals and Methods' (Monash University Faculty of Law Legal Studies Research Paper No. 3071105) by Linda Smith, Jeff Giddings and Leah Wortham
explores

the full range of goals one might have for an extern program and the methods one should use to achieve those goals. Despite regulatory focus on practice readiness and “skills” development, externships need not and sometimes should not have “skills” as the primary goal. If skills are to be a focus, then students must learn the theory and methods behind the skills to be used in the placement either through targeted pre-requisites, a skills-focused classroom component, or selection of placement supervisors with the ability to impart both the relevant theory and methods. Commentators have identified both skills and professionalism as lacking in legal education, and externships have special advantages for development of professional identity and for institutional critique--the micro and the macro aspects of professionalism. Students are in the “real world,” able to try out a professional identity and to study the ways in which their supervisors enact the lawyering role. They are encountering actual legal institutions that function well or not-so-well, which should lead to critical inquiry into these institutions. The emotional and analytical distance between the teacher at the law school and the day-to-day supervisor should facilitate the exploration of both professional identity and institutional critique. Exploring these aspects of professionalism are rich and important goals, we argue, that extern programs ought to seek.

Research on the privacy paradox – the dichotomy between individuals’ intentions to disclose personal information and their actual disclosure behavior – has become popular as policy makers have been working on privacy laws. This article provides a literature review of the privacy paradox across fields of study. Many researchers have explored the privacy paradox and come up with the conclusion that decisions taken by individuals regarding the transmission of private data were irrational. This article first provides a systematized review of the extensive literature in psychology, sociology, management, economics and biology that explores the decision-making process related to online transfer of private data. Then, we show that the literature seems to agree on the fact that people act either rationally or with limited rationality. To conclude, we focus on the potential importance of awareness campaigns or key historical moments to explain the different sensitivities people have regarding privacy issues.

The Rise of Robots and the Law of Humans (Oxford Legal Studies Research Paper No. 27/2017) by Horst Eidenmueller comments

In this article, I attempt to answer fundamental questions raised by the rise of robots and the emergence of ‘robot law’. The main theses developed in this article are the following: (i) robot regulation must be robot- and context-specific. This requires a profound understanding of the micro- and macro-effects of ‘robot behaviour’ in specific areas. (ii) (Refined) existing legal categories are capable of being sensibly applied to and regulating robots. (iii) Robot law is shaped by the ‘deep normative structure’ of a society. (iv) If that structure is utilitarian, smart robots should, in the not too distant future, be treated like humans. That means that they should be accorded legal personality, have the power to acquire and hold property and to conclude contracts. (v) The case against treating robots like humans rests on epistemological and ontological arguments. These relate to whether machines can think (they cannot) and what it means to be human. I develop these theses primarily in the context of self-driving cars – robots on the road with a huge potential to revolutionize our daily lives and commerce.

Copyright & Liability

Statements in this blog are my own, rather than that of the University of Canberra.

The text and images are protected under Australian and international copyright and trade mark law. The blog does not represent legal advice. It is for informational purposes only; publication does not create an attorney-client relationship and nothing on this blog constitutes a solicitation for business.

The author pleads guilty to charges of irreverence, irony, indignation and honestly-held opinion.